Morgan v Faith [1994] PGNC 85; N1207 (22 April 1994)

N1207

PAPUA NEW GUINEA
[In the National Court of Justice]

Appeal 21 of 1993 (H)

VERONICA MORGAN

V

DAMIEN FAITH

Mt Hagen: Woods, J
22 February and 22 April 1994

Appeal - District Court - Maintenance proceedings - time of action - Frauds and Limitations Act 1988.

P Kunai for the Appellant.
A McDonald for the Respondent.

22 April 1994

WOODS, J: This is an appeal from a decision of the District court at Mount Hagen which held that the appellant's action for maintenance under the Child Welfare Act Ch 276 instituted 15 years after the birth of the child was statute barred pursuant to the Frauds and Limitations Act 1988 and the action was thereby struck out.

The ground of appeal is that the magistrate erred as the cause of action was founded under the Child Welfare Act and was not subject to the time limit provisions in the Frauds and Limitations Act.

This matter commenced with a complaint laid under Section 51 of the Child Welfare Act Ch 276 in the District Court on the 13th January 1992 for the maintenance of an illegitimate child born on the 31st August 1977. This type of proceeding is commonly referred as an affiliation proceeding. And the Act provides that maintenance can be ordered until a child attains 16 years.

The Magistrate found that as there is no reference to any time period within which actions can be brought the Frauds and Limitation Act 1977 Section 16 must apply:

Section 16. Limitations of Actions in Contract, Tort Etc.

(1) Subject to sections 17 and 18, an action -

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

In his reasons the magistrate noted that the complainant has brought this matter as a fresh complaint after 15 years of it being undisputed. He said it is against public policy because she had no interest in the matter for that 15 years.

It has been submitted before me that the wording of the provision under the Child Welfare Act by allowing such maintenance to be claimed for the first 16 years of the child's life means a claim can be brought any time during that 16 years such claim being enforceable until the child attains 16 years. However this submission overlooks the fact that such a claim for maintenance or as it is called an affiliation proceeding must commence with the proof of paternity. The cause of action is the paternity. There is nothing in the Child Welfare Act which specifically states that such a proceeding can be brought at any time, S.56 only says the order for maintenance is enforceable till 16 years, this does not mean actionable, so the limitation in the Frauds and Limitations Act must apply to the action to obtain the order, being an action for an order to recover a sum recoverable by virtue of an enactment. There must be valid public policy and practical considerations why the time limitation of 6 years should apply. Firstly if a party waits for more than 6 years can we really be sure that they are serious about the claim or merely being opportunist, I mean it appears that they have not needed the maintenance during that delay. Secondly a limitation period is put into place to give parties a chance to defend actions before too many years have passed and memories have faded. It is an exceptional hardship for a person suddenly without any forewarning to have to try and remember exactly what they did many years ago. And the Magistrate referred to this in his reasons.

I rule that the Frauds and Limitations Act 1988 applies to maintenance proceedings under the Child Welfare Act and that the Magistrate made no error in striking out the proceedings.

I dismiss the Appeal.

**********************************

Lawyer for the Appellant: Kunai & Co.
Lawyer for the Respondent: Warner Shand